Masonite Corporation v. Steede , 198 Miss. 530 ( 1945 )

CONCURRING OPINION. As will be observed from the opinion in chief, the action here is for consequential damages to the business of plaintiff and for loss of profits therein, and involves the following steps in the line of causation; (1) That the stream was polluted by putting suspended wood fiber therein; (2) that the fish were killed by the presence of the fiber; (3) that the river up and down in proximity to plaintiff's property became, for the reason next before stated, a poor fishing territory; (4) that the fishermen, or those who indulged in the relaxation of that sport, thereupon ceased coming to this territory; (5) that their ceasing to come deprived plaintiff of their patronage; and (6) that in the loss of their patronage plaintiff lost the profits of her business which theretofore had been in the entertainment of the sports fishermen.

If, then, plaintiff had no cause of action for the killing of the fish, it would follow inevitably that she has no cause of action out of the steps subsequent thereto in the line of causation, laying aside the issue whether steps 4, 5 and 6 are proximate rather than remote causes.

A cause of action in tort comprehends a primary right possessed by the plaintiff and the corresponding primary duty resting upon the defendant, and the delict or wrong done by the defendant in breach of such primary right and duty. 1 C.J.S., Actions, Sec. 8, p. 984; 1 Am. Jur., p. 417. Legal damage resulting from some injury to the right of plaintiff or from the breach of a duty owing to him is a necessary element of a cause of action in his favor. The primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense. 1 Am. Jur., p. 422. A cause of action consists of a right belonging to the plaintiff and some wrongful act or omission done by the defendant by which that right has been violated, — there must have been some right, title or interest in the plaintiff which has been violated or some duty to him which has been broken. A wrong done to the property of another person is not sufficient, for the plaintiff is not to be the vicarious beneficiary of such a breach of duty to another. See numerous causes Vol. 6 Words Phrases, Perm. Ed., "Cause of Action." A tort is an unlawful violation of a private legal right not created by contract. 1 Chapin on Tort, p. 1.

No primary right possessed by plaintiff was violated by the defendant in this case. The tort complained of was that the defendant killed the fish in the Pascagoula River, but plaintiff did not own the fish or any legal right or interest therein whatsoever. She had as well have complained that the defendant had killed or frightened away all the game in the adjacent woods and thereby driven away the hunters who were her patrons. Nothing is better settled in this state than the law that fish are ferae nature, and that no person, other than the state, has any property in them until he has actually captured them and reduced them to his actual possession. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 109 Am. St. Rep. 700. In Masonite Corporation v. Burnham, 164 Miss. 840, 859, 146 So. 292, 296, 91 A.L.R. 752, the Court said: "Appellees were not riparian owners; they therefore had no right or title to the fish in the creek; they were not concerned as to whether they were destroyed by the pollution of the stream or not, unless their destruction resulted in offensive odors that reached appellees." And in the later case, State Game Fish Commission v. Louis Fritz Co., 187 Miss. 539, 193 So. 9, all the Judges concurred in the holding that a riparian owner does not own any of the fish in waters such as is the Pascagoula River.

Thus the primary question before us has been decided by this Court. Plaintiff had no right, title or legal interest in the fish as they existed in their wild state in this large stream; and possessing no such right, no tort was committed against her in their killing — she had no cause of action in such a foundation of fact. There is no allegation and certainly no definite proof that after appellant had contributed to the killing of the fish, it left their dead bodies along the banks of her riparian land, or that there were any offensive odors therefrom to interfere with the use of her property — her action stands on the remote consequences stated under the foregoing numerals (4) to (6), and these involved the intervening, independent, voluntary action of third persons.

Therefore, while I fully concur in the opinion in chief that there has been no proof which will validly support a verdict under the last-mentioned numerals, I am of the further opinion that, without reserving the point, the decision should be laid back of these and that plaintiff has no cause of action whatever, and this under numeral (2).

Let us suppose that a large mine employing hundreds of miners has been flooded by a tort feasor, so as to render the mine unusuable for many months. The miners to obtain work go to another territory, leaving a boarding-house near the injured mine without boarders. Would the boarding-house keeper have a cause of action against the tort feasor who injured the mine for the loss of the boarding-house profits, when he had no right, title or interest in the mine? It is true that the tort feasor has caused a condition without which the loss would not have occurred, but he violated no right, title or interest of the boarding-house keeper, and to allow recovery in such cases would bring on a train of legal consequences which would be intolerable in any practical system of jurisprudence.

It is to be observed that plaintiff was not herself engaged in commercial fishing within her riparian boundaries, and her action is not laid upon any such basis. In fact, she does not show what her riparian boundaries were, or whether a few rods on each side, or more. Her complaint is that her patrons, or those who would be her patrons, were caused to stay away. It is to the precise case presented that this concurring opinion is directed.

L.A. Smith, Sr., and McGehee, JJ., concur.